6th Circuit Hears Oral Arguments In Homeschooling Asylum Case

As reported by the Christian Post and AP, the U.S. 6th Circuit Court of Appeals yesterday heard oral arguments in Romeike v. Holder, a case that is being widely followed by homeschool advocates.  At issue is whether asylum should be granted to a German family who came to the United States because of Germany's mandatory school attendance law that does not permit homeschooling.  8 U.S.C. § 1101(a)(42)(A) defines a refugee who may be entitled to asylum as a person who is unable or unwilling to return to his home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."

The Romeikes emphasized in oral argument that theirs is a religious freedom claim. They say in their brief (full text) that they chose homeschooling because of anti-Christian and sexually inappropriate elements of the public school curriculum. They contend:

It is beyond dispute that religious homeschooling is a valid exercise of basic human rights, not just in the United States but also under international human rights norms. Germany is obligated to protect these rights under both its own Constitution and its voluntary adoption of international human rights treaties. Instead, Germany punishes homeschoolers for acts of conscience. The Romeikes will suffer such persecution if they are forced to return to Germany. 

On the other hand, the Justice Department in its brief (full text) contends:

[T]he record contains no evidence suggesting that the government of Germany created the mandatory attendance requirement in order to punish homeschoolers or religious people, or that the law is unfairly administered in such a way that homeschoolers or members of any religion are specifically targeted.

Britain's House of Commons Debates Place of Sharia Law In England

In Britain yesterday, in the House of Commons, MP Kris Hopkins opened a debate on Sharia Law, questioning whether the government planned to recognize and provide resources for Sharia councils. The full text of the debate is available from the House of Commons website. Responding to Hopkins questions, Under-Secretary of State for Justice Helen Grant said in part:

... [S]haria law has no jurisdiction under the law of England and Wales and the courts do not recognise it. There is no parallel court system in this country, and we have no intention of changing the position in any part of England and Wales.

... [S]haria law is the code of personal religious law governing the conduct of Muslims. Those principles can extend to all aspects of people’s lives. There are a number of sharia councils in England and Wales that help Muslim communities resolve civil and family disputes by making recommendations by which they hope that the parties will abide, but I make it absolutely clear that they are not part of the court system in this country and have no means of enforcing their decisions. If any of their decisions or recommendations are illegal or contrary to public policy—including equality policies such as the Equality Act 2010—or national law, national law will prevail all the time, every time. That is no different from any other council or tribunal, whether or not based on sharia law.

Court Rejects Farmer's Religious Objections To Appealing Administrative Order

The Baraboo, Wisconsin News Republic and Wisconsin Ag report that a Wisconsin state trial court judge in a ruling from the bench on Monday rejected a religious freedom defense to an aspect of the four misdemeanor charges against Amish dairy farmer Vernon Hershberger.  The Loganville (WI) farmer is charged with ignoring a Wisconsin Department of Agriculture, Trade and Consumer Protection order to discontinue sales of unpasteurized milk at his farm. The state argues, in part, that Hershberger never appealed the state's hold order.  Hershberger says that his religious beliefs precluded his filing an appeal which, he says, would have been an act of aggression.  Hershberger in the past filed an appeal of his bond conditions in a criminal case; but he says that his religious objections only apply to appeals in civil cases. The court held that Hershberger had not provided sufficient evidence to support his "nuanced" religious objections.

Tax Objector's Religious Freedom Challenges to Indictment Rejected

In United States v. Ogilvie, 2013 U.S. Dist. LEXIS 57195 (D NV, April 19, 2013), a Nevada federal district court rejected attempts by a defendant, indicted on conspiracy charges for failure to pay federal taxes, to invoke religious liberty claims to obtain a dismissal of the indictment. The court rejected defendant's 1st Amendment and RFRA objections to the income tax, saying "the interest in maintaining an efficient and orderly taxation system is compelling justification for burdens on religious freedom." It also rejected his claim that the collection of income taxes violates the Establishment Clause because income taxes are a tenet of the religion of socialism. Finally, the court rejected defendant's objection to the appointment of stand-by counsel, despite defendant's claim that his religious belief does not allow him to be represented by counsel.

USCIRF Wants U.S. At United Nations To Focus On Religious Freedom Violations In 5 Countries

Yesterday the U.S. Commission on International Religious Freedom released the text of a letter that the Commission has recently sent to Secretary of State John Kerry urging the U.S. to raise specific issues during the United Nations Human Rights Council’s Universal Periodic Review this month. USCIRF wants the U.S. to  question violations of religious freedom and human rights in Uzbekistan, Turkmenistan, Russia, Azerbaijan, and Bangladesh.

Second Child of Faith-Healing Couple Dies While Parents Are On Probation For Earlier Death

The Philadelphia (PA) Inquirer yesterday reported on the probation-violation hearing in Common Pleas Court in Philadelphia in the case of Herbert and Catherine Schaible. The couple-- members of the First Century Gospel Church that calls for prayer rather than medical care-- did not seek medical help for their 8-month old son who died last week after days of breathing problems and diarrhea. The couple told police: "Our religion tells us not to call a doctor."  In 2011, the couple were convicted of involuntary manslaughter and placed on probation after their 2-year old son died when they failed to seek medical care for his pneumonia. A condition of their probation was that they seek medical care in the future whenever any of their children became ill. (See prior posting.) Philadelphia's child welfare agency has now placed the couple's 7 other children in foster homes. Prosecutors are awaiting the medical examiner's report in the most recent death before deciding whether to charge the couple criminally.

Pennsylvania's Child Protective Services Law, Sec. 3490.4 provides that a child will not be deemed to be abused where the parent has not sought medical care because of seriously held religious beliefs. However the county may monitor the child and seek court-ordered medidal intervention.

Australian State Exempts Sikhs From Bike Helmet Requirement

In the Australian state of Queensland, the Transport Minister today announced that Transport Operations (Road Use Management – Road Rules) Regulation 2009 is being amended to exempt Sikhs from the requirement to wear a bicycle helmet. The helmets will not fit over turbans that Sikhs wear for religious reasons. According to the Brisbane Times, the amended Regulations will provide an exemption for an individual's longstanding religious beliefs. The change came after a court last month refused to impose a fine or demerit points on the license of cyclist Jasdeep Atwal, a Sikh, who was booked for riding without a helmet. (Brisbane Times, 3/27). The exemption will not apply to motorcyclists.

USCIRF Issues Report On Promoting Religious Freedom In Syria

The U.S. Commission on International Religious Freedom yesterday released a 13-page special report titled Protecting and Promoting Religious Freedom In Syria. The Report argues that: "U.S. leadership is vital, both to press the al-Assad government to cease its severe human rights violations and to ensure that any future government protects human rights and religious freedoms for all Syrians."

Second Suit Filed Against Florist Who Refused To Sell Flowers For Same-Sex Wedding

The ACLU of Washington State announced last week that it has filed a discrimination lawsuit against a Kennewick, Washington florist who refused, because of her religious beliefs, to sell a male couple flowers for their same-sex wedding. The state-court complaint (full text) in Ingersoll v. Arlene's Flowers, (WA Super. Ct., filed 4/18/2013), seeks an injunction and damages for violation of the Washington Law Against Discrimination and the Washington Consumer Protection Act. The suit by the same-sex couple follows a similar one against the florist filed by the Washington state attorney general earlier this month. (See prior posting.)

State Department Issues 2012 Country Reports On Human Rights; China Responds In Kind

On April 19, the U.S. State Department submitted to Congress the 2012 Country Reports on Human Rights Practices. (Press release). Among the issues highlighted in the Introduction to the Reports are Chinese repression of rights of  ethnic Uighurs and Tibetans, as well as anti-Semitism in the Middle East, Europe and Latin America.

China yesterday responded by issuing its own report on the Human Rights Record of the United States in 2012. While focusing mainly on other human rights issues, the report by the State Council Information Office of the People's Republic of China decried religious discrimination in the U.S. against Muslims.

Recent Articles of Interest

From SSRN:

• Marshall Thompson, Tortured Morals: The Illegality and Immorality of the Enhanced Interrogation Program from an LDS Perspective, (April 10, 2013).
• Patrick M. Garry and John P. Garry, The Establishment Clause and the Making of a New Secularism: A Review Essay on Church, State and the Crisis in American Secularism by Bruce Ledewitz, (Duquesne University Law Review, Vol. 51, No. 1, 2013).
• Brian Michael McCall, The Church and the Usurers: Unprofitable Lending for the Modern Economy, (April 10, 2013).
• Donna Carol Litman and Steven H. Resnicoff, Jewish and American Inheritance Law: Commonalities, Clashes, and Estate Planning Consequences,(in L. Moscovits (ed.), Jewish Law Association Studies XXII (2012)). 
• Robert K. Vischer, Do For-Profit Businesses Have Free Exercise Rights?, (Journal of Contemporary Legal Issues, 2013, Forthcoming).
• Douglas Laycock and Thomas C. Berg, Protecting Same-Sex Marriage and Religious Liberty, (99 Virginia Law Review In Brief (2013)).
• Mark D. Rosen, Religious Institutions, Liberal States, and the Political Architecture of Overlapping Spheres, (University of Illinois Law Review, Forthcoming).
• James David Nelson, Conscience, Incorporated, (April 8, 2013).
• Nelson Robert Lund, Same-Sex Marriage in the Courts of Law and Reason, (Engage: The Journal of the Federalist Society's Practice Groups, Vol. 14, No. 1, pp. 34-35, February 2013).
• Gianluca Parolin, (Re)Arrangement of State/Sharī'ah Relations in Egypt's Constitutional Transition (April 15, 2013). NYU School of Law, Public Law Research Paper No. 13-15.
• Michael Stokes Paulsen, The Plausibility of Personhood, (74 Ohio State Law Journal 14 (2012)).
• Nina J. Crimm, What Could Globalization Mean for Domestic Islamic-Socio-Political Activism?, (36 Fordham International Law Journal 600 (Symposium Issue, 2013).
• François-Xavier Licari, L'Arbitrage Rabbinique, Entre Droit Talmudique Et Droit Des Nations (Rabbinic Arbitration, Between Talmudic Law and the Law of the Gentiles), (Revue de l'arbitrage 2013, pp. 57-120). 

Court Grants Preliminary Injunction Barring Enforcement of Contraceptive Coverage Mandate Against Small Business

A Pennsylvania federal district court last week issued a preliminary injunction baring the federal government from enforcing the Affordable Care Act contraceptive coverage mandate against Seneca Hardware Lumber Co., Inc. and its Catholic owners. In Geneva College v. Sebelius, (WD PA, April 19, 2013), the court held that under RFRA the mandate imposes a substantial burden on the business owners who are being forced to choose between violating their deeply held religious beliefs and causing their closely held corporation to terminate their health insurance coverage. It also concluded that the government had not shown a compelling interest in refusing to exempt this company from the mandate:

In light of the myriad exemptions to the mandate’s requirements already granted and conceding that the requirement does not include small employers similarly situated to SHLC, the requirement is “woefully underinclusive” and therefore does not serve a compelling government interest.

(See prior related posting.)

Recent Prisoner Free Exercise Cases

In Davis v. Abercrombie, 2013 U.S. Dist. LEXIS 52479 (D HI, April 11, 2013), an Hawaii federal district court allowed three Native Hawaiian inmates to proceed with claims seeking to practice their Native Hawaiian religion in various ways. Most of the claims brought by several other Native Hawaiian inmates were dismissed for failure to exhaust administrative remedies. However state law claims were permitted to proceed.

In Jenkins v. Knight, 2013 U.S. Dist. LEXIS 52613 (SD IN, April 11, 2013), an Indiana federal district court dismissed an inmate's claims, among other things, that his free exercise and RLUIPA rights were infringed when he was removed as spokesperson for the Native American Circle.

In Wells-Bey v. Kopp, 2013 U.S. Dist. LEXIS 54839 (D MD, April 16, 2013), a Maryland federal district court rejected a Muslim inmate's complaint that the Department of Corrections violated his free exercise rights by providing an lacto-ovo diet instead of a non-vegetarian Halal diet. However the court refused to dismiss his complaint that the diet was inappropriate for him because of an allergy to eggs.

In Wilson v. Padgham, 2013 U.S. Dist. LEXIS 54768 (ND FL, April 17, 2013), a Florida federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 54765, April 5, 2013) and dismissed under the "three-strike" rule an inmate's in pauperis lawsuit challenging as free exercise and RLUIPA violations the prison's  grooming policy, lack of space for daily prayers, threats of retaliation, and a ban on congregate prayer in the housing dormitory.

In Stevens v. Yates, 2013 U.S. Dist. LEXIS 55937 (ED CA, April 17, 2013), a California federal magistrate judge dismissed, with leave to amend, allegations by a Muslim inmate that he was denied access to the chapel and to a Muslim chaplain, that he was temporarily denied a head covering, and that he had a dispute regarding the date on which Ramadan ended.

Boy Scouts Propose To Lift Ban On Gay Members, But Still Bar Gay Leaders

On Friday, the National Executive Committee of the Boy Scouts of America sent a letter to the approximately 1400 voting members of its National Council forwarding a lengthy Resolution (full text) that provides in part:

No youth may be denied membership in the Boy Scouts of America on the basis of sexual orientation or preference alone.

The Resolution will be voted on at the Annual Meeting in May. Under the proposal, the Scouts will maintain its current policy that bars from adult leadership positions "individuals who are open or avowed homosexuals or who engage in behavior that would become a distraction to the mission of the BSA." The Boy Scouts has also posted a Memberships Standards Executive Summary and a Frequently Asked Questions document on the controversial proposal that emerged after an extensive study of attitudes. (Seer prior related posting.) The New York Times reports that the new proposal has drawn criticism from conservative Christian groups who accuse the Scouts of caving in to political pressure. Meanwhile gay rights groups criticized the decision to maintain the ban on homosexual scout leaders, saying it perpetuates stereotypes about gay men. Churches, many (but not all) of which consider homosexual conduct to be sinful, sponsor many Boy Scout troops around the country. (See prior posting.)

Overruling Magistrate, Court Says Clergy-Penitent Privilege Applies To Unordained Minister

In United States v. Dillard, (D KA, April 19, 2013) a Kansas federal district court rejected a magistrate judge's ruling (see prior posting) and held that:

the modern federal clergy-penitent privilege is not restricted to persons with formal ordination. The policies underlying the privilege apply with equal force to lay persons who regularly conduct religious counseling sessions.

Defendant Angel Dillard ministers to inmates in the Sedgwick, Kansas County Jail through Christian Ministries to Offenders, Inc. (CMO).  Dillard's communications with Scott Roeder, who is serving a life sentence for of murdering abortion provider Dr. George Tiller, and with another inmate, are sought by the government in a civil case it has filed against Dillard charging that she sent a threatening letter to an abortion provider.

In reaching its conclusion that Dillard's communications were privileged, the court relied both on the Kansas statute (K.S.A. 60-429) which privileges penitential communications with "regular" as well as with "duly ordained" ministers, and on proposed Rule 506 of the Federal Rules of Evidence. The court said:

Limiting the federal clergy-penitent privilege to formally ordinated ministers would have the inescapable effect of shutting down prison ministry programs not only in Kansas, but throughout the nation. Programs such as CMO depend on the volunteer services of lay ministers, and could not survive if the private communications between prisoners and ministry volunteers were unprotected from government scrutiny. As a consequence, ministry programs serving thousands of inmates would be directly imperilled.

Missouri House of Worship Protection Act Upheld

In Survivors Network of Those Abused by Priests v. Joyce, (ED MO, April 19, 2013), a Missouri federal district court upheld the constitutionality of Missouri's House of Worship Protection Act. The statute prohibits intentionally and unreasonably disturbing a worship service or intentionally interfering with a person seeking access to a house of worship or exercising religious rights there. The challenge to the law was filed by two groups. One (SNAP) regularly pickets and leaflets outside of churches where clergy alleged to have sexually abused children have served. The other (Call To Action) engages in peaceful vigils outside Catholic churches supporting issues such as LGBT equality and equality for women in the Church.  Granting summary judgment to defendants, the court concluded that the statute is a content-neutral time, place and manner regulation that is neither impermissibly vague nor constitutionally overbroad. (See prior related posting.)

Penalty Enhancement For Meth Labs Near Churches Survives Establishment Clause Attack

In People of the State of Illinois v. Stewart, (IL App., April 16, 2013), an Illinois state appeals court, following state Supreme Court precedent, upheld a state statute (720 ILCS 646/15(b)(1)(H) that provides an enhanced criminal penalty for participating in the manufacturing of methamphetamine within 1,000 feet of a place of worship or parsonage.  Rejecting an Establishment Clause challenge, the court said: "The penalty enhancement... acts not as an establishment of religion but, rather, as a protection for those people particularly vulnerable to the evils of drug trafficking."

Oklahoma Governor Signs Bill Limiting Use of Foreign Law In State Courts

Just days after the Oklahoma legislature passed the bill, Oklahoma Governor Mary Fallin on Friday signed HB 1060 (full text), a bill that limits application of foreign law by Oklahoma courts. (KRMG News). Largely tracking the American Law for American Courts Model Act, the new Oklahoma statute bars courts, arbitration tribunals or administrative agencies from basing their rulings or decisions on foreign law that would not grant the affected parties the same fundamental rights and liberties that are guaranteed by the U.S. and Oklahoma Constitutions. Among the qualifications on the Act's broad ban is one that attempts to protect religious organizations adjudicating ecclesiastical matters. Last year, the U.S. 10th Circuit Court of Appeals held that an earlier Oklahoma constitutional amendment aimed more directly at the application of Sharia Law violated the Establishment Clause. (See prior posting.)

Pastor's Suit For Defamation Dismissed Under Ecclesiastical Abstention Doctrine

In Torralva v. Peloquin, (TX App, April 18, 2013), a Texas appeals court held that the ecclesiastical abstention doctrine and the ministerial exception bar defamation, interference with contract and infliction of emotional distress claims brought by a Baptist associate pastor against his church's former head pastor, a deacon and three other congregants.  Plaintiff Armando Torralva alleged that defendants attempted to destroy his character and ruin him socially by claiming that a picture he e-mailed to the church's head pastor amounted to pornography.  The picture, from publicity by another church for a program for married couples, showed a fully clothed couple lying in bed embracing, and was captioned "Ignite Your Marriage ... Mattress Not Included."

In dismissing Torralva's claims, the appeals court said:

Each of Torralva’s causes of action are based on appellees’ allegedly taking action against him for conduct that they viewed as inappropriate for an associate pastor. There was no evidence adduced that Torralva’s reputation was harmed outside of the Church community.... Thus, trial on Torralva’s claims would require an analysis of "church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required." ... The ecclesiastical abstention doctrine precludes subject matter jurisdiction over those causes of action.

Virginia High Court Largely Awards Break-Away Congregation's Property To The Episcopal Church

In The Falls Church v. Protestant Episcopal Church in the United States of America, (VA Sup. Ct, April 18, 2013), the Virginia Supreme Court affirmed in part a trial court's opinion (see prior posting) and ordered that property of a break-away congregation be conveyed to The Episcopal Church (TEC) and the Episcopal Diocese in Virginia. While applying a "neutral principles of law" approach to the property dispute, the Supreme Court disagreed with the trial court's analysis of Virginia law. The Supreme Court held that statutory changes enacted by the Virginia legislature in 1993 repealed the state's prior limitations on the creation of denominational trusts and validated property conveyances made for the benefit of any diocese or religious organization. The Supreme Court went on to hold that after this change, the Episcopal Church's "Dennis Canon" supports the imposition of a constructive trust on the local congregation's property in favor of TEC. The Court remanded for further proceedings the issue of who is entitled to personal property acquired by the local congregation after its vote to disaffiliate from TEC.

Justice McClanahan filed a concurring opinion arguing that "the Diocese acquired their interest in the disputed church property, not merely by a constructive trust, but rather by an express trust pursuant to the Dennis Canon..." He reached this conclusion by arguing that prior Virginia law that prohibited the enforcement of express denominational trusts violated the Establishment Clause.

Reporting on the decision, the Washington Post places the lengthy and complex litigation involving one of the country's largest Episcopal churches in some context:

The Virginia Supreme Court ruled for the Episcopal Church on Thursday in a bitter, multi­million-dollar property dispute with a conservative congregation that had left the denomination over the Bible’s view of homosexuality and other issues....

On Thursday, the Supreme Court affirmed that the property was rightly given to the mainline denomination but said some of the nearly $3 million in church coffers belongs to the Falls Church Anglican congregation.

  [Thanks to Bob Tuttle for the lead.]